I'm a subcontractor working on a large commercial project. I finished my work on September 23, 2020, and have only been paid 98.3% of the original contract price. But then was requested to go back and repair items that other disciplines had damaged after I had finished them totaling back charges of $18956.70. And my customer isn't returning my calls or emails. I sent a notice of Intent to Lien. Is there anything else that I do?
Your deadline to file a lien is Tuesday, December 22, 2020. File your lien with the Escambia County Clerk of Court on or before that date to preserve a lien on the property for the balance of your subcontract.
As you probably expected, more information is needed to give you a complete response. It is likely, however, that the owner may have a defense to a lien for the repair work you performed. In general, owners are liable for liens for work performed in accordance with the prime contract between the owner and the general contractor. When completed work is damaged due to the fault of the general contractor or one of its subcontrctors or suppliers, such costs are generally not passed along to the property owner and do not increase the amount of the prime contract between the owner and the general contractor. Consequently, the owner would likely have a defense to a claim of lien for the repair costs under these circumstances since the owner is not responsible for paying twice for the same work. As a result, you may only have a claim against the general contractor for the repair work you performed. If the general contractor backcharges the trade that damaged your work, however, that would not result in a double charge to the owner and your work might be considered lienable.
If you choose to include the repair costs in a claim of lien, there are other considerations as well.
1. Whether or not you already provided the general contracstor either an unconditional or a conditional final lien waiver on the project is significant. If you have, then the repair work should be treated like a new contract with a new Notice to Owner served, and a new claim of lien recorded for the repair work. If you have not provided a final lien waiver, you need to submit a change order for the repair costs and adjust your subcontract amount accordingly. If you record a lien against the project, out of an abundance of caution, and to provide some protection against a claim by the property owner that your claim of lien was exaggerrated in amount by including the repair work and therefore fraudulent and unenforceable under Florida Statutes Section 713.31(2)(a) and unenforceable, you may want to break out the two amounts separatetly. For instance, "... of a total value of $___, of which, $18956.70 was for a change order for damage repair, and of which there remains unpaid $___ $18,956.70 of which is for the damage repair work.
2. You are still requred to record your lien within 90 days of the date of last furnishing labor, services or materials to the project. In determining whether a day was your last day of working. There is case law to the effect that you cannot count punchlist work, warranty work, corrective work, or work of an inconsequential value as constituting "last furnishing" for purposes of the 90 day deadline. This, of course, only reinforces an owner's argument that corrective or repair work is not viewed as work for which there would be lien rights.
The amount you are owed is significant and merits a conversation with an attorney to explore all the relevant facts.
Daniel L. Moody, Esq.
Daniel Moody, P.A.
www.danielmoodylaw.com
email: dmoody@danielmoodylaw.com